The Supreme Court heard oral arguments Monday in its second campaign finance case in two years. The latest matter, which involves a pair of challenges to Arizona’s public funding program for state candidates, likely will not feature as prominently in popular discussion as last year’s Citizens United decision, which struck down prohibitions on independent political speech by corporations and labor unions.
Taken together, however, these two cases seem to appeal to many liberals as a focal point for validating their long-held conviction that American democracy is dominated by a conspiracy of the powerful and the wealthy. Yet as deep as their beliefs are in this oppression theology masquerading as political theory, it is wrong, and it compounds the error to use campaign finance law as a solution in search of this imaginary problem.
As an introduction, a brief overview of Monday’s case: In 1998, Arizona passed the Citizens Clean Elections Act, which provides public funding to candidates for state government who agree to forgo private contributions and abide by spending limits in their campaigns. Designers of the Arizona program recognized a major flaw in public financing, however, which is that privately funded candidates often outraise and outspend their publicly funded opponents. Take, for example, the 2008 presidential race, in which then-Sen. Barack Obama, relying on private contributions, out-fundraised Sen. John McCain, limited to Uncle Sam’s money, by a ratio of more than 4-1. Thus, to make public financing palatable, Arizona’s program provides additional funds to any publicly funded candidate who is outspent by a privately funded opponent as well as by any outside groups that run ads supporting the privately funded candidate.
Let’s put aside momentarily the technical intricacies and legal arguments involved here, which are incomprehensible to the average layperson. Legions of pundits and legal scholars and nine justices far smarter than I have weighed in already on those issues and will continue to do so as the court deliberates on this case. Instead, let’s look at what supporters of the Arizona program are saying in court and what they are saying in public, for the contrast is quite striking.
In court, the Campaign Legal Center, a prominent proponent of stricter campaign finance laws, has argued in support of the Arizona program as a measure to reduce corruption by preventing lawmakers from becoming beholden to any group of private contributors. Outside of court, however, the center issued a statement warning that striking down the Arizona program “could make it harder for ordinary citizens to compete with big money in our democracy.” Ominously, it continued, such a result would “increase still further the grossly disproportionate voice given to corporations and unions in our elections.” The center’s rhetoric echoes President Obama’s State of the Union address last year, in which he condemned the Citizens United ruling as “open[ing] the floodgates” for elections to be “bankrolled by America’s most powerful interests.”
But look around you: Is our political system really dominated by the wealthy and the powerful? Start with the “progressive” personal income tax system. If it were true that our politicians were beholden to their rich contributors, why, according to the National Taxpayers Union, does 38 percent of the total federal tax burden fall on the wealthiest 1 percent of Americans? Why do the wealthiest 10 percent of Americans shoulder more than two-thirds of the burden?
And what about those corporations, which Citizens United supposedly allowed to run hog-wild in our elections? If our politicians were doing only the bidding of wealthy corporations, why, according to the Paris-based Organization for Economic Cooperation and Development, does the U.S. have the second-highest corporate tax burden in the world?
Consider, also, our major social-welfare “entitlement” programs. Last year’s health care legislation expanded Medicaid eligibility to 133 percent of the federal poverty level - hardly a provision that favors the rich. And in all of the discussions about Social Security, both Democrats and Republicans are proposing “means testing” to make the rich pay more. Adding to the irony, according to the Center for Responsive Politics, the man presiding in the Oval Office over these policies counts among his top contributors the executives and employees of Goldman Sachs, Citigroup, JP Morgan, UBS and Morgan Stanley. If private contributions allow the rich and powerful to “buy” politicians, they’re not getting a very good return on their money.
Regardless of the legal merits surrounding Arizona’s public subsidies for politicians, the broader, publicly stated premise for perpetuating these types of programs seems to be a “progressive” prophylactic against plutocracy. While this may be a worthy concern, the Supreme Court has never ruled that campaign finance laws can be used for this purpose. But perhaps more importantly, there appears to be scant empirical evidence that this is a pressing danger.
Eric Wang is a campaign finance attorney.